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2017 DIGILAW 340 (ORI)

Nanda Behera v. Akhsaya Kumar Behera

2017-03-29

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. By this petition under Article 227 of the Constitution of India challenge is made to the order dated 27.2.2015 passed by the learned Civil Judge (Jr. Divn.), Salipur in C.S. No.34 of 2010, whereby and whereunder learned trial court rejected the application of the defendant no.3 to exclude the unregistered partition deed, Ext.3, from the evidence. 2. Opposite party nos.1 to 4 as plaintiffs instituted the suit for correction of map and permanent injunction impleading the petitioner as well as opposite party nos.5 and 6 as defendants. In course of hearing, the unregistered partition deed dated 25.6.1965 has been marked as Ext.3 by the plaintiffs. Thereafter the defendant no.3-petitioner filed an application to exclude the same from the purview of consideration on the ground that Ext.3 is an unregistered and unstamped document. The same is also not admissible for collateral purpose. The plaintiffs filed objection. Learned trial court came to hold that the document in question has been marked as Ext.3. The admissibility and genuineness of the same can only be determined at the time of passing of the judgment. Held so, learned trial court rejected the same. 3. Mr. Mishra, learned counsel for the petitioner submitted that an unregistered partition deed is not admissible into evidence. The same cannot be used for collateral purpose. He relied on the decision of the apex Court in the case of Siromani vs. Hemkumar and others, AIR 1968 SC 1299 and this Court in the case of Braja Sundar Nanda vs. Pravabati Kar and others, AIR 2014 ORISSA 1. 4. Per contra, Mr. Mohapatra, learned counsel for the opposite party nos.1 to 4 submitted that once an unregistered partition deed has been marked as exhibit, the admissibility of the same can be considered at the time of final hearing. He relied on the decision of the apex Court in the case of Javer Chand and others vs. Pukhraj Surana, AIR 1961 SC 1655 . 5. The sole question that hinges for consideration of this Court is as to whether once an unregistered partition deed has been marked as exhibit without objection, the same can be excluded from the purview of the consideration ? 6. Before adverting to the contentions raised by the counsel for both parties, it will necessary to set out the provisions of the Indian Stamp Act, 1899. 6. Before adverting to the contentions raised by the counsel for both parties, it will necessary to set out the provisions of the Indian Stamp Act, 1899. Secs.33, 35 and 36 of the Indian Stamp Act are quoted hereunder. “33. Examination and impounding of instruments- (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced on coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in [India] when such instrument was executed or first executed: Provided that- (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt,- (a) [the [State Government]] may determine what offices shall be deemed to be public offices; and (b) [the [State Government]] may determine who shall be deemed to be persons in charge of public offices. xxx xxx xxx 35. (3) For the purposes of this section, in cases of doubt,- (a) [the [State Government]] may determine what offices shall be deemed to be public offices; and (b) [the [State Government]] may determine who shall be deemed to be persons in charge of public offices. xxx xxx xxx 35. Instruments not duly stamped inadmissible in evidence, etc.-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that- (a) any such instrument not being an instrument chargeable [with a duty not exceeding ten naye paise] only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument in sufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and anyone of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of [the (Government)] or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act. 36. 36. Admission of instrument, where not to be questioned.-Where an instrument has been admitted in evidence, such admission shall, not, except as provided in Sec.61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.” 7. Section 17(1) of the Registration Act, 1908 mandates that any document which has the effect of creating and taking away rights in respect of an immovable property must be registered. Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals that documents that are required to be registered under Section 17 of the Act. 8. In Javer Chand (supra), the apex Court held: “Section 36 is in these terms:- “Where an instrument has been admitted in evidence, such admission shall, not, except as provided in Sec.61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.” That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognized by the section is the class of cases contemplated by S.61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.” 9. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.” 9. In Siromani (supra), the apex Court held that the document effecting partition of joint family properties and value of more than Rs.100 which registration is compulsory. The same is inadmissible to prove the title of any of the coparceners to any particular property or to prove that any particular property has ceased to be joint property. But then, the document is admissible to prove an intention on the part of the coparceners to become divided in status. 10. In Braja Sundar Nanda (supra), in spite of the objection raised by the defendants, the plain paper agreement was executed with objection. The same was challenged before this Court. A Bench of this Court on a survey of the decisions of the apex Court and this Court came to hold that a document not duly stamped by not paying adequate stamp duty is not admissible in evidence in terms of Sec.35 of the Stamp Act and the said document cannot also be admissible for collateral purposes. Held so, this Court directed the learned trial court to unmark the document vide Ext.1 and to impound the document by directing the plaintiff to pay the stamp duty as per Sec.35 of the Stamp Act and as per the State Amendment. There is no provision in the Stamp Act to unmark the agreement. Once a document not duly stamped has been exhibited, the consequence will ensue. 11. An identical matter came up for consideration before the apex Court in the case of Yellapu Uma Maheswari and another vs. Buddha Jagadheeswara Rao and others, (2015) 16 SCC 787 . In the said case the appellant 1-Defendant 1 filed her chief-examination affidavit and sought to mark Exts.B-1 to B-48. Respondent 1plaintiff raised objection with regard to admissibility of Exts.B-21 & B-22. According to the appellant-defendant Ext.B-21 is deed of memorandum witnessing earlier partition effected between the parties and Ext.B-22 is an agreement between late Mahalakshamma, plaintiff and Defendant 1. Plaintiff took objection with regard to admissibility of Exts.B-21 and B-22 on the ground that whole contents referred to in the memorandum dated 5-6-1975 disclose that the second party thereto relinquished her right through the said documents. Therefore, Ext.B-21 and Ext.B-22 have to be construed as relinquishment deeds. Plaintiff took objection with regard to admissibility of Exts.B-21 and B-22 on the ground that whole contents referred to in the memorandum dated 5-6-1975 disclose that the second party thereto relinquished her right through the said documents. Therefore, Ext.B-21 and Ext.B-22 have to be construed as relinquishment deeds. A relinquishment deed which is compulsorily registrable document under Section 17(1)(b) of the Registration Act, 1908 and hence, the unregistered document is not admissible in evidence. The plea of the defendants is that the recitals of the said document disclose past transaction with reference to division of property and further they disclose the intention of the parties to enter into a separate agreement for sharing the properties and that the terms therein have to be implemented in future. Both the trial court and the High Court upheld the objection raised by Respondent 1-plaintiff and came to a conclusion that two recitals, i.e. Exts. B-21 and B-22 are not evidencing the past transaction, but they prima facie disclose the partition of the property and relinquishment of rights by one of the parties. As such, both documents require stamp duty under the Stamp Act, 1899 and registration under the Registration Act, 1908. As Exts. B-21 and B-22 are unregistered and unstamped documents, they are not admissible in evidence. The aggrieved party approached the apex Court. The apex Court held thus: “15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition. 16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy Vs. Chinnappareddigari Vankata Reddy has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.” (emphasis laid) 12. Thus where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit. Once a document has been admitted in evidence, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. An unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. If the petitioner wants to mark the documents for collateral purpose, it is open to him to pay the stamp duty together with penalty and get the document impounded. Thereafter the trial court shall consider the same for collateral purpose subject to proof and relevance. 13. The petition is disposed of with the aforesaid observations.